Beruflich Dokumente
Kultur Dokumente
A final draft submitted in partial fulfillment of the course, IPR law during the Academic Session
2019-20, 7th Semester
SUBMITTED BY:
NAME: Ashutosh Kumar
ROLL NO. 1616
BATCH: B.B.A. LLB
SUBMITTED TO: Dr. S. C. Roy.
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DECLARATION
I hereby declare that the work reported in this Project Report entitled “Copyright in Drawings”
submitted at CHANAKYA NATIONAL LAW UNIVERSITY, PATNA, for the fulfillment of the
B.B.A.LL.B. (Hons.) Course, is an authentic record of my work carried out under the supervision
of DR. S. C. ROY. I have not submitted this work elsewhere for any other degree or diploma.
NAME:
SIGNATURE :
DATE :
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ACKNOWLEDGEMENT
I would like to thank my faculty, Dr. S. C. Roy whose guidance helped me a lot with structuring
my project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.
I would also like to extend my gratitude to my parents and all those unseen hands who helped me
out at every stage of my project.
Ashutosh Kumar
B.B.A. LLB.
7th semester
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TABLE OF CONTENT
Introduction ………………………………………………………………………
Research Objectives……………………………………………………………..
Hypothesis …………………………………………………………………………
Research Methodology……………………………………………………………
Bibliography…………………………………………………………………….
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Introduction
The Copyright Act 1957 governs the law related to the copyrights in India. The Copyright Act,
1957 as amended in 2012, supplemented by the Copyright Rules, 2013, with subsequent
amendments, is the governing law for copyright protection in India. India is a member of the
Berne Conventions and Universal Copyright Convention. The Government of India has also
issued the International Copyright Order, 1999, according to this order; any work first published
in any country - which is a member of any of the above conventions - is granted the same
treatment as if it was first published in India.
As provided under the statute2, registration of a Copyright is prima facie evidence of the
Particulars entered in the Register of Copyright and documents purporting to be copies of any
entries therein, or extract there from certified by the Registrar of Copyrights and sealed with the
seal of Copyright Office, shall be admissible in evidence in all courts without further proof or
production of original. Certain exclusive rights3 are granted to the owner of the Copyright
enabling the owner of the Copyright to do or to with hold from doing, certain acts in relation to
the copyright works.
These rights are broadly divided into moral rights (those rights which relate to protection of
personality of the author and integrity of this work, and similar matters) and economic rights
(those rights which help the author to commercially exploit his creation).4
Research Objectives
1
Definition of Work, as provided under Section 2 clause y of The Copyright Act 1957.
2
Section 48 of The Copyright Act 1957.
3
Recognized by the Berne Convention, 1886 and the TRIPS agreement & Section 14 of the Copyright Act.
4
As laid down under Chapter IV Section 17-21 of the Copyright Act 1957.
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To analyze the essence of Intellectual Property Rights for the protection of Trade Secret
in India.
To analyze the reasons behind the Trade Secret infringement in India.
To find out the importance of Trade Secret Protection in India.
To ascertain the most suitable requirements for Trade Secret to protect confidential
information.
Hypothesis
Research Methodology
The researcher had selected the problem with a great interest keeping the significance and
impelling need of it in the intellectual Property Rights Protection in the present conditions,
circumstances, and socio-legal in mind. However, the methods adapted to carry out the research
work are in doctrinal in nature, descriptive, structural and functionally analytical. The relevant
material is collected from the primary and secondary sources. The material information‟s are
collected from legal and non-legal sources like international legal intruments, statute, judgments,
books of legal experts of national and international repute, newspapers, law journals, law reports,
internet references and opinions of research scholars, academicians and other experts who have
dealt with this subject are used as a real contribution to this work.
Since the researcher is a student of law, she has access to a limited area and knowledge. The
researcher having only a preliminary knowledge of IPR laws could understand the problem
clearly but was faced with constraints.
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The researcher has limited time for the project. The historical need and background is also
necessary for having a bird’s eye view of the particular topic and it gets developed only by
effective and extended reading over a long period of time.
However the researcher only has access to limited amount of work that is available in the library.
The researcher has a restricted access to information and sources for reasons beyond her control.
But the researcher will still attempt to take out the best possible work.
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Chapter -1
Definitions
Any work which is an original creation of an author or an owner fixed in a tangible form, is
capable of being entered into the Register of Copyrights, irrespective of the fact that whether
such work posses any artistic quality or not.
The definition of Artistic work as laid down under Section 2 of the Copyright Act, is fairly
comprehensive and descriptive. Copyright shall subsists in any original artistic work comprising
of paintings, sculptures, graphics, cartoons, etchings, lithographs, photography, drawings, plans,
maps, diagrams, charts, buildings, models of buildings, moulds and casts for sculptures.
1. Artistic works:
Artistic work” means,— a painting, a sculpture, a drawing (including a diagram, map,
chart or plan), an engraving or a photograph, whether or not any such work possesses
artistic quality; a [work of architecture]; and any other work of artistic craftsmanship; as
provided under Section 2(c) of the Copyright Act.
1.1. Work of architecture “Work of architecture” means any building or structure having
an artistic character or design, or any model for such building or structure as
provided under Section 2 (b). In addition to this, according to Section 13 (2) (iii), in
case of work of architecture, the work shall be located in India.
Further, read with Section 13(5) in case of work of architecture, copyright shall
subsists only in the artistic character and design and shall not extend to process or
methods of construction.
1.2. Photograph “Photograph” includes photo-lithograph and any work produced by any
process analogous to photography but does not include any part of a cinematograph
film as provided under Section 2 (s) of the Copyright Act.
1.3. Engravings “Engravings” include etchings, lithographs, wood-cuts, prints and other
similar works, not being photographs as provided under Section 2 (i) of the
Copyright Act.
1.4. Work of Sculpture “Work of Sculpture” includes casts and moulds as provided under
Section 2 (za) of the Copyright Act.
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1.5. Work capable of being used in relation to goods or services A work capable of being
represented graphically, which is capable of distinguishing goods or services of one
undertaking from those of the goods or services of another undertaking shall be
considered for the purposes of registration “Work capable of being used in relation to
goods or services” such as brand symbols, labels logos, packaging, Cartoons etc.
1.6. Artistic Work applied for copyright registration which is capable of being registered
as a Design under the Designs Act, 2000. According to World intellectual property
Organization and Section 2(d) of the Designs Act 2000, an Industrial Design
constitutes the ornamental or aesthetic aspect of an article. It can be in a form of a
two-dimensional or a three dimensional drawing of any article, such works, provided
that it shall be in connivance with the provisions of Section 15 of the Copyright Act
1957, which affirms that –
(1) Copyright shall not subsist under this Act in any design which is registered under the
Designs Act, 2000 (16 of 2000).5
(2) Copyright in any design, which is capable of being registered under the Designs Act,
2000 (16 of 2000), but which has not been so registered, shall cease as soon as any article
to which the design has been applied has been reproduced more than fifty times by an
industrial process by the owner of the copyright or, with his licence, by any other person.6
It can be applied for registration under the Copyright Act 1957. The aforementioned
works shall be considered as “Artistic work”, for the purpose of registration of Copyright,
irrespective of the artistic craftsmanship of the work, provided it is expressed as a single
work.
5
Section 15 clause 1, Special provision regarding Copyright in designs registered or capable of being registered
under the Designs Act, 2000 (16 of 2000)
6
Section 15 clause 2, Special provision regarding Copyright in designs registered or capable of being registered
under the Designs Act, 2000 (16 of 2000)
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Chapter 2
There are two ways of filing any application for registration of Copyright:
By the way of online method, applicants can register themselves on the official website of the
Copyright Office –
http://copyright.gov.in/UserRegistration/frmLoginPage.aspx
Click on the link “e filing of application”, and proceed thereon by filling up the online
registration form XIV, Statement of Particulars, and Statement of further Particulars.
It is preferable that the applications for registration are filed online, as filling of online form is
convenient, the options available for payment of the government fees for registration are
effortless, and the unique Diary number is generated immediately, which makes the whole
process more user friendly. Government Fees for Registration of a Copyright in Artistic
Category7
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at http://copyright.gov.in/
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REGISTRATION DESIDERATUM
Once the application for registration is filled & submitted online, the same is mandatorily
required to be sent, to the Copyright Office at, Plot no. 32, Boudhik Sampada Bhawan, Sector-
14, Dwarka – 110075, New Delhi, within 30 days of filing of the online applications, along with
all necessary documents, being: -
Duly filled Form XIV, Statement of Particulars, and Statement of further Particulars,
signed by the applicant8 , in case of a company, proprietorship or a firm the person who
is duly authorized to sign the application, along with the seal of the company,
proprietorship or a firm. The authority of the signatory shall be exhibited by a letter of
Authority, or a Board resolution.
The application form shall not be acceptable, if signed by an attorney under whatsoever
circumstances. 9
Power of Attorney signed by the applicant and duly accepted by the Attorney.
No Objection Certificate from various other persons involved in the creation of work, in
case the applicant is the author of the work No Objection Certificate is not required.
Search Certificate issued by the Trade Mark Registry, in pursuance to Section 45 of the
Copyright Act, 1957 (proviso), in case of Artistic works used or capable of being used in
relation to goods or services. The application for registration of Artistic work used or
capable of being used in relation to goods or services shall be filed within one year of the
date of issue of the Search Certificate issued by the Trade Mark Registry.
An affidavit, if the work is appearing to be capable of being registered under Designs
Act.10 The contents of the affidavit shall include that the work is neither registered nor
applied for registration under Designs Act 2000 in pursuance to :- Rule 70(7) Copyright
Rules 2013 Every application for registration in respect of an artistic work which is
capable of being registered as a design under Designs Act, 2000, such application shall be
accompanied by the statement in the form of an affidavit containing the following, :-
namely
a) It has not been registered under Designs Act, 2000; and
b) It has not been applied to an article through an industrial process and reproduced more
than fifty times.
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Further the contents must also include that the work is not reproduced more than fifty
times by any industrial process, in pursuance to :-
Section 15(2) of the Copyright Act 1957 Copyright in any design, which is capable of
being registered under the Designs Act, 2000 (16 of 2000), but which has not been so
registered, shall cease as soon as any article to which the design has been applied has
been reproduced more than fifty times by an industrial process by the owner of the
copyright or, with his licence, by any other person
No Objection Certificate from the publisher if publisher is other than the applicant.
No Objection Certificate by the person whose picture is appearing on the work.
Two original & identical copies of the work. (the title of the work shall appear on the
work) The FORM XIV, Statement of Particulars, Statement of Further Particulars, shall
be in the Format as prescribed under Chapter XVIII - Schedule I - Copyright Rules 2013.
A format of the same is also given at http://copyright.gov.in/frmformsDownload.aspx.
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Chapter -3
1. Works neither used nor capable of being used in relation to goods or services :
Works neither used nor capable of being used in relation to goods or services shall
include, but not limited to paintings, photograph, sculpture, drawing, sketches, maps,
charts etc.
2. Works used or capable of being used in relation to goods or services:
Works used or capable of being used in relation to goods or services shall include but not
restricted to labels, symbols, marks or logos, associated with a brand or a business.
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If a model or a picture of a person appears on the Artistic work 8, the applicant shall be
required to submit a No Objection Certificate from the model. If the applicant claims that
the model or a picture of a person appearing on the Artistic work is fictitious or
purchased or downloaded, the applicant may be required to submit an affidavit stating the
same in this regard, or a consent letter or a purchase agreement between the parties.
6. Board/card games:
Board Games/ Card games are registered under Artistic as well as Literary category as it
has both Artistic and Literary characteristics, However, they cannot be protected in its
entirety. A board game author may seek the registration for the graphics & pictures in the
board game under Artistic category, and the attributes of the protagonists and the
instructions/rules of the game under literary category. Board games and Card games are
Copyrightable under artistic category to the extent of the Artistic characteristics involved
in the work. Board games and Card games may be approved for registration only if
expressed as a single work. Any work of similar nature, appearing to be different/separate
work may be considered as multiple works and in such cases applicant shall be required
8
Whitney Chadwick, for example, has written a book in which she considers women artists through the ages,
Virginia Woolf explored why, as she put it, ‘It would have been impossible, completely and entirely, for any woman
to have written the plays of Shakespeare in the age of Shakespeare,’ while Rita Charbonnier wrote of the
secondary position Mozart’s sister was forced to assume in a novel exploring her life. (See: Whitney Chadwick,
Women, Art, and Society, Thames & Hudson, 4th edition, 2007; Virginia Woolf, A Room of One’s Own, 1929; Rita
Charbonnier, Mozart’s Sister, Three Rivers Press; 2007.)
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to apply for registration separately. The copyright law only protects the particular manner
of the author’s expression in artistic or literary form but does not cover the idea of the
game, or methods of playing.9
7. Artistic work comprising of government logos, labels, symbols or emblems:
For registration of any artistic work comprising of, in full, or in part, any government
logo, label or symbol, shall not be eligible for registration of copyright unless the
applicant is able to submit a No Objection Certificate from the concerned authority or
department and clarifying how the work is a creation of author’s own skill and labour.
Any such artistic work shall be processed for registration, only if it is in connivance with
the provisions of The Schedule, The Emblems and Names (Prevention of Improper Use)
Act, 1950 and not in contravention with any Act or Rule applicable in India.
8. Certificates:
A Certificate is an official document attesting a fact. For any work to be a copyrightable
subject matter is to be created by the exercise of labour, skill and judgment of the author.
Copyright does not subsists in certificates of any kind as Certificates are merely
recordable documentation and neither possess any original Artistic skill or labor; nor does
it express the uniqueness of the author’s creativity. Mostly all certificates appear to be in
a basic generic format.
9
The issue of the protection of indigenous art is not an issue which confronts India alone: Australia, for example,
has also had to contend with it in recent times in its attempts to protect aboriginal art. (See: Simon Stokes, Art and
Copyright, Hart Publishing, 2012, pp. 186-189; Also: Yumbulul v. Reserve Bank of Australia, (1991) 21 I.P.R. 481
(Aust.) [Yumbulul].)
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and such photograph or a portrait of a person is applied for registration under artistic
category, the applicant shall required to submit a No Objection Certificate from such
organization or trust.
10. Collage:
A collage is also a copyrightable subject matter. The applicant is required to submit a No
Objection Certificate from the person/persons appearing in the collage if any.
11. Language of the Artistic work not mentioned with respect to Column 6 of the
Statement of Particulars:
While filing up the Statement of Particulars, Column 6, Language of the work, is a
mandatory column. The applicant is required to not leave this column vacant. With
respect to artistic works the applicant shall indicate all the languages used which are
apparently visible on the work. In cases where no language is apparently visible on
thework, the applicant shall mention the language in which the title of the work is
depicted. However this column may also be indicated as “NIL”, if no language is used at
all in creation of the work.10
12. Artistic works capable of being registered under Designs Act 2000:
Every Design is a drawing, but every drawing is not a design. For any work which
qualifies to be a Design in accordance with the definition of Design under Section 2(d)
Designs Act and is apparently capable of being registered under Section 10 of the
Designs Act, but is applied for registration of copyright under Artistic category, shall be
approved for registration only after submission of an affidavit stating that the work is not
10
It exploited a loophole in the 1911 English Copyright Act to ensure that a full translation right was not recognised
under Indian copyright law. Instead of a full translation right, in India, apparently to encourage translations of
works into various domestic languages (presumably for the benefit of consumer-readers), authors were only
accorded a limited right of translation — thus balancing their right with the right of consumers to be able to access
books. (See: Lionel Bently, Copyright, Translations, and Relations between Britain and India in the Nineteenth and
Early Twentieth Centuries, 82 Chi.-Kent. L. Rev. 1181 (2007).
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applied for registration under Designs Act and it has not been reproduced more than 50
times by the applicant. Any such work shall be submitted as one work per application.
13. Architectural Drawings:
An architectural drawing is a drawn expression of the Architect’s original thoughts,
expressed using technical signs, symbols, and graphical representations together to form
an instruction to build a structure. In entirety, architectural drawings or plans are
copyrightable subject matter.11
11
Ajit Balakrishnan, Wave Rider, Pan Macmillan India, 2012 re the amendment to the IT Act.
12
The consequences of copyright are not clear. In a 2014 study, Giorcelli and Moser found that data on ‘2,598
operas that premiered across eight states within Italy between 1770 and 1900 [....] indicate that the adoption of
copyrights led to a significant increase in the number of new operas premiered per state and year’. (Michela
Giorcelli and Petra Moser, Copyright and Creativity: Evidence from Italian Operas, 2014. last accessed on 05
December 2014.) There has, however, been much debate about precisely what the economic consequences of
copyright in general are.
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(2016) 2 SCC 521
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17.Maps:
Copyright provides for protection of author’s original creation, “map” may include
cartographic representations of area, such as terrestrial maps and atlases, marine charts,
celestial maps and such three-dimensional works as globes and relief models.
Geographical Maps can be protected under Copyright, provided that the applicant shall
be able to furnish a No Objection Certificate from the Source of Creation or the Survey of
India as a proof of authentication.
18. Pamphlets & posters: Posters and Pamphlets include both artistic as well as literary
characteristics. They are entitled for copyright protection under artistic category only to
the extent of the Artistic content of the work. The literary content in the Posters and
Pamphlets shall be separately protected under literary category.
20. Painting:
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Painting is an artistic work whether or not it possesses any artistic quality . For
protection- a painting must be original and not amere copy of another painting. The
painting is not defined. However, painting without a surface is not painting. A painting
must be on a surface of some kind.
14
Section 2 (c) (i) and Section 13 (1) (a).
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21.Drawing:
15
Content laws make an appearance, inter alia, in: 1950 Army Act, 1995 Cable Television Networks (Regulation)
Act, 2003 Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 1952 Cinematograph Act, 1968 Civil Defence Act, 1987
Commission of Sati (Prevention) Act, Constitution of India, 1986 Consumer Protection Act, 1971 Contempt of
Courts Act, 1957 Copyright Act, 1961 Dowry Prohibition Act, 1940 Drugs and Cosmetics Act, 1954 Drugs and Magic
Remedies (Objectionable Advertisements) Act, 1950 Emblems and Names (Prevention of Improper Use) Act, 1993
Human Rights Act, 1986 Indecent Representation of Women (Prohibition) Act, 1860 Indian Penal Code, 1992 Infant
Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1985
Intelligence Organisations (Restriction of Rights) Act, 2000 Information Technology Act, 2011 Information
Technology (Intermediaries Guidelines) Rules, 2000 Insurance Regulatory and Development Authority (Insurance
Advertisements and Disclosure) Regulations, 2000 Juvenile Justice Act, 1998 Lotteries (Regulation) Act, 1986
National Security Guard Act, 1957 Navy Act, 1923 Official Secrets Act, 1966 Police Forces (Restriction Of Rights)
Act, 1994 Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1971 Prevention of Insults to
National Honour Act, 2012 Protection of Children from Sexual Offences Act, 1955 Prize Competition Act, 1951
Representation of the People Act, 1989 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1994 Transplantation of Human Organs Act, 1999 Trade Marks Act, 1956 Young Persons (Harmful Publications) Act.
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Chapter -4
Conclusion
The fundamental aim of the 1957 Copyright Act appears to be to secure of balance of interests so
that the requirements of all the stakeholders (including creators, distributors, and consumers) are
served in relation to works which are protected by copyright. This is seen not only the through
the various deeming provisions which pepper the statute but also in its macro-structure. Section
51 of the 1957 Copyright Act which protects copyright owners and explains when copyright is
infringed is, for example, immediately countered by Section 52 of the statute which carves out a
large number of exceptions and limitations to copyright infringement that benefit not only
consumers of copyrighted works but also, to an extent, author-artists by facilitating the creation
of derivative works.
The most critically aspect of grants of rights in relation to art works though is to ensure that the
grants are crystal clear about what is being granted. A sale of a painting, for example, (or any
other art work) is not the same as and does not automatically include the transfer of the copyright
in the painting to the buyer. As such, if the buyer desires to buy both the work and the copyright
subsisting in it, the relevant contract must be drafted to reflect this, and particularly in cases
where the sale of the painting is not its first sale, it may be necessary to conduct some form of
due diligence not just to establish the provenance of the painting but also to establish the chain of
rights through which copyright is being transferred. Of course, in addition to all of this, a
contract relating to an art work will also generally contain all of the usual clauses found in
commercial contracts, amongst other things, relating to indemnity (and indemnification caps),
dispute resolution, and choice of law. Although these are not extraordinary by any measure, they
do reflect the need to combine general contract law with the specific provisions of the 1957
Copyright Act while entering into contracts relating to art works.
As a general rule, where the authors of works are the the owners of both the works and the first
owners of the copyright in the works, they transfer their rights either to buyers or to distributors.
Over time, a number of different models to remunerate authors for the acquisition of their rights
have evolved.
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Bibliography
STATUTORY PROVISIONS-
Design act, 2000
Copyright Act, 1957
BOOKS-
WEBSITIES-
http://copyright.gov.in/
http://wikipedia.com/
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